But let me finish the task I assigned myself and move on to live-blogging my reading of the Thomas dissent (which is joined by Scalia):

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.

This is an excellent beginning, highlighting the main problem with using substantive due process — the idea of fundamental liberties (the "right to marry") — rather than equal protection. It's easy to see that the government is subject to equal protection limits as it hands out benefits, but maybe liberty should have only to do with being left alone to do what you can do on your own without interacting with the government.

So I'm very interested in what Thomas has to say about equal protection (which I think makes the most sense as the basis for the right), but he has almost nothing to say. He drops a footnote early on, observing that the majority says it's using equal protection, but it's "clearly" only using it "to shore up its substantive due process analysis." I agree, but when you're finding a right, one is enough. If you're rejecting the claim of right, you need to reject both grounds. Thomas should at least have articulated a legitimate government interest to be advanced by excluding same-sex couples from the legal institution of marriage. In my view, it cannot be done. (Listen to the oral argument to hear the ludicrous implausibility of the connection between the government's asserted interest — that children grow up with their biological parents — and the restriction of marriage to opposite-sex couples.)

More here, including the story of how the grandfather clock in the Oval Office stopped at the moment of the announcement, documented by a photo of the clock, which might thrill some soft-hearted folk but makes me want to say that clocks are always stopped in still photographs.

CORRECTION: I guess I wanted to think that's how Obama reacted to the same-sex marriage case... or it expressed how I felt. But it was the Obamacare case he was reacting to. The reaction is less remarkable. The Obamacare case was a big personal win for his administration.

Better get on the love train, people, before it's too late! The White House is going with #LoveWins, and the train is leaving the station!

You can stand there on the platform and stomp your feet as it leaves without you, but now would be a good time to get on board and show some love. Come on, Scott Walker. Get on board. We're leaving....

I'm guestblogging this week. I've guestblogged over there many times in the past, but before there were comments, so this time it's different. I think there are some people in there who are ex-commenters of this blog, and some people are keen to tell Glenn that I don't belong there. This kind of thing:

"... asked Andrew Sullivan, one of the intellectual architects of the marriage movement. 'I don’t know the answer to that yet.' John Waters, the film director and patron saint of the American marginal, warned graduates to heed the shift in a recent commencement speech at the Rhode Island School of Design. 'Refuse to isolate yourself. Separatism is for losers,' he said, adding, 'Gay is not enough anymore.'... 'People are missing a sense of community, a sense of sharing,' said Eric Marcus, 56, the author of 'Making Gay History.' 'There is something wonderful about being part of an oppressed community,' Mr. Marcus said.... The most vocal gay rights activists may have celebrated being outsiders, but the vast majority of gay people just wanted 'what everyone else had,' he said — the ability to fall in love, have families, pursue their careers and 'just live their lives.'"

... We do not know whether the killer of Reverend Pinckney and eight others knew all of this history. But he surely sensed the meaning of his violent act. It was an act that drew on a long history of bombs and arson and shots fired at churches, not random, but as a means of control, a way to terrorize and oppress. An act that he imagined would incite fear and recrimination; violence and suspicion. An act that he presumed would deepen divisions that trace back to our nation’s original sin.

Oh, but God works in mysterious ways. God has different ideas. He didn’t know he was being used by God. Blinded by hatred, the alleged killer could not see the grace....

The alleged killer could not imagine how the city of Charleston, under the good and wise leadership of Mayor Riley... how the state of South Carolina, how the United States of America would respond — not merely with revulsion at his evil act, but with big-hearted generosity and, more importantly, with a thoughtful introspection and self-examination that we so rarely see in public life.

Blinded by hatred, he failed to comprehend what Reverend Pinckney so well understood -- the power of God’s grace.... As a nation, out of this terrible tragedy, God has visited grace upon us, for he has allowed us to see where we’ve been blind. He has given us the chance, where we’ve been lost, to find our best selves. We may not have earned it, this grace, with our rancor and complacency, and short-sightedness and fear of each other — but we got it all the same. He gave it to us anyway. He’s once more given us grace. But it is up to us now to make the most of it, to receive it with gratitude, and to prove ourselves worthy of this gift....

I've highlighted the most religious part, including the brief exploration of the notion that God used Dylann Storm Roof pursuant to his famously "mysterious" ways. I've left out the material that was more specific to the individual man, Clementa Pinckney, and the various policy proposals — take down the Confederate battle flag, improve the schools, deal with possible racial bias in prison systems and in policing and job hiring, restrict guns. You can read all that at the full transcript at the link.

June 26, 2015

Let's move on to the Chief Justice Roberts dissenting opinion in Obergefell. The Chief annoyed a lot of conservatives yesterday, saving Obamacare, so maybe he'll win some righties back today. I thought there was a chance that the Chief would join Kennedy and vote with the liberals. But he didn't. Let's look at why.

He begins: "Petitioners make strong arguments rooted in social policy and considerations of fairness." But that fairness only reaches the policy level. It's for the legislatures. It's not a constitutional right.

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

So he's coming down hard on the "definition" argument, which I've always disliked. The legal issue isn't over who gets to define words, it's about how government can treat people. Government needs at least a legitimate interest for excluding same-sex couples from the various benefits of the status of marriage, which it maintains in the legal system. Government needs at least a legitimate interest for everything it does. (Oddly, the words "legitimate" and "interest" appear nowhere in any of the Obergefell opinions!)[ADDED: The word "interest" does appear (twice) but not in reference to the government's interest.]

[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

That ignores — for the moment — the majority's argument that marriage has not stayed the same over time. (Justice Kennedy wrote that "The history of marriage is one of both continuity and change," and cited many examples of evolution in the institution, notably the changes in "the role and status of women," who under the doctrine of coverture were regarded as part of "a single, male-dominated legal entity.")

The Chief tells us that the "premises supporting this concept of marriage are so fundamental that they rarely require articulation." Only male-female sex produces children, and a children are better off (usually) if their parents stay together:

Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

That brings up a couple ways marriage has changed: We don't restrict sex to married couples. And we let married people divorce pretty easily.

[B]y bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without.

Maybe there's some effect to that, but what good is achievable by excluding others from marriage? Do you need nonprocreative couples to be disrespected so the procreatives can feel especially good about themselves? Who marries for that reason?

The Chief does get around to the majority's argument that marriage has changed over time. But, he says, these changes did not reach "the core structure of marriage as the union between a man and a woman.... The majority may be right that the 'history of marriage is one of both continuity and change,' but the core meaning of marriage has endured." How does he know what part of the meaning of marriage is the "core"? Why are judges able to do that and not make decisions about other things that require judgment?

The Chief mentioned the 4 "principles and traditions" that the majority found in the due process precedents but didn't go through them one by one. (You can see them discussed one by one in my earlier post, here.) He just says the majority’s approach is "unprincipled" and belongs in the junkpile of "discredited" decisions labeled Lochner.

There's no enumerated right — "no 'Companionship and Understanding' or 'Nobility and Dignity' Clause in the Constitution." The Due Process Clause it refers to "liberty," but in the context of referring to "process," so, Roberts says, judges should be circumspect about ranking some liberties as "fundamental" and protecting them in ways that go beyond good-enough process. Roberts doesn't reject all of substantive due process case law — the right of privacy precedent — but he cautions restraint and demands historical analysis — not philosophy that isn't "deeply rooted in this Nation’s history and tradition."

The Chief distinguishes the right to same-sex marriage from everything else in the privacy precedents:

Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.... [T]he privacy cases provide no support for the majority’s position, because petitioners do not seek privacy.

The Chief Justice drums up alarm by predicting a new right to polygamous marriage: "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage." Why should children in polygamous families "suffer the stigma of knowing their families are somehow lesser"? He cites a 5-year-old Newsweek article that estimates that there are 500,000 "polyamorous" families in the United States. (Here's my 2006 blog post about distinguishing same-sex and polygamous marriage.)

The Chief moves on to equal protection and says something I quite agree with:

The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases....

There's none of the usual equal protection doctrine in the majority opinion, no discussion of the level of scrutiny or what the supposed "legitimate state interest" is. I think equal protection should have been easy. Just say there is no legitimate state interest in excluding gay couples from marriage. But no. The majority used what Roberts called "the 'harm principle'" that "sounds more in philosophy than law."

There follows a long section on the value of democracy and the problem of unelected judges deciding too many things. There are some good sentences here, but it's quite repetitious!

Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.

But this does seem to be the sort of thing courts usually decide. And I think people will accept it quite readily. In fact, I think the overall reaction will be one of relief that we don't have to keep chewing over this issue. Let people get back to their personal relationships that were always going on anyway. The country wasn't collapsing because gay people love each other and seek the legal aspects of permanence. This isn't like Roe v. Wade — there are no unborns to save — though the Chief Justice adverts to Roe v. Wade at this point:

As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted).

It's memorable and important that Justice Ruth Bader Ginsburg said that. I appreciate that citation, and, in fact, I think there should have been more discussion of abortion rights in Obergefell. The word "abortion" doesn't even occur in the entire text of the 5 opinions. Roberts brought it up but hid it under the neutralizing phrase "another issue." It's the right that dare not speak its name.

... beginning his dissenting opinion in Obergefell v. Hodges, today's same-sex marriage case. Scalia is joined by Justice Thomas, and Thomas also has a separate dissenting opinion, joined by Scalia.

The Chief Justice also has a dissenting opinion, joined by Scalia and Thomas. And Justice Alito has a dissenting opinion, joined by Scalia and Thomas. So Scalia and Thomas are on all 4 dissenting opinions, and the Chief and Alito are only on their own. That's a lot to sift through, and I'm going to do each of the dissenting opinions in separate posts. This is the Scalia post. I'm doing it first because I bet it's the most clearly written, and I expect to enjoy reading it (even though I'm a longtime supporter of same-sex marriage, and I think it was time for the Court to take a position on the right and end the disuniformity, and I think the majority opinion, discussed 2 posts down, is a worthy and competent application of the case law).

Justice Scalia has long objected to the Court's substantive due process cases, and that's what he does again here today. He thinks the Court is acting like a legislature when it protects the substance of fundamental liberties — he writes "liberties," in quotes — "that the Constitution and its Amendments neglect to mention." He writes that the people were doing a good job working through the same-sex marriage issue. It's been "American democracy at its best."

In a straining-to-be-memorable passage, Justice Scalia says the majority hides its usurpation of power "beneath the mummeries and straining-to-be-memorable passages of the opinion." (A "mummery" is a "Ridiculous ceremony (formerly used esp. of religious ritual regarded as pretentious or hypocritical).") That's from the OED, which gives an example of the word from Frederick Lewis Allen's 1931 book "Only Yesterday/An Informal History of the 1920's": "[The Ku Klux Klan's] white robe and hood, its flaming cross, its secrecy, and the preposterous vocabulary of its ritual could be made the vehicle for all that infantile love of hocus-pocus and mummery, that lust for secret adventure, which survives in the adult whose lot is cast in drab places.")

Justice Scalia criticizes the majority's failure to stick to history as it delineates what liberties get protected as fundamental. You can see in the earlier post that Justice Kennedy set out 4 reasons that underlie the right-to-marry cases and that, he says, apply equally well to same-sex couples. Scalia does not try to distinguish same-sex and opposite-sex couples on these 4 points. He objects to talking about fundamental liberty in these terms at all, repeating over and over that the judges are acting like legislators. Even if it were acceptable for judges to make legislative decisions, the Supreme Court would be terribly unrepresentative of the people of the United States, Scalia says, because they are all lawyers, they all studied at the same 2 law schools (Harvard and Yale), not one is a Protestant Christian, and (except for one) they are all (as we say in Wisconsin) coasties.

Justice Scalia expresses astonishment at "the hubris reflected in today’s judicial Putsch." A "Putsch" is "An attempt to overthrow a government, esp. by violent means; an insurrection or coup d'état." That's the OED. "Hubris" is "o’erweening pride; and pride, we know, goeth before a fall." That's Scalia himself.

He complains that the "style" of the opinion "egotistic" — partaking of the "extravagances" ordinarily found in (ahem) dissenting opinions. He's especially bothered by: "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." "Really?," he responds. "Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."

I misread "Ask the nearest hippie" when I glanced at it earlier. I thought he was accusing the majority of being so sloppy about finding the meaning of freedom that it was equivalent to asking the nearest hippie. But he was joking about marriage. Hippie voice: Marriage as freedom?! That's freaked-out, man. Marriage is the death of freedom.

Justice Scalia picks on a line that I thought, see below, was especially opaque: rights come from "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." His response is "Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?" That "stuff" isn't the "clear thinking and sober analysis" that belongs in a court opinion.

These are all familiar Scalia ideas. I get the impression he banged this one out pretty casually, making observations he's made many times before, in other opinions and in his many speeches. I'll hazard to say he's made his peace with same-sex marriage. He saw it coming long ago, and he's not upset about the social change. It's not of immense personal importance to me.

... beginning with Loving v. Virginia. These cases all "presumed a relationship involving opposite-sex partners," but courts necessarily make "assumptions defined by the world and time of which it is a part." Despite that assumption, the precedents had underlying reasons that "apply with equal force to same-sex couples." There are, we're told, 4 reasons:

1. The "concept of individual autonomy." This idea is found in the cases "concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make." (Abortion belongs on that list. Is it tactful — tactical? — to leave it off?) "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."

2. "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Is "unlike any other" relationship between 2 persons. It's about the assurance that there will always be "someone to care" for you.

3. Marriage is about bringing up children in a setting of "permanency and stability." Same-sex couples have children — biological and adopted children — and it makes no sense to exclude these parents and force the children to "suffer the stigma of knowing their families are somehow lesser."

4. Marriage is the "keystone of our social order." It's also — mixing architectural metaphors — the "foundation" and "a building block." Government confers many benefits based on the status of marriage, and there's nothing different about same-sex couples that provides a reason to exclude them from this statues and the "constellation of benefits that the States have linked to marriage." And it's not just "material burdens." It's the disparagement: "As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society."

Justice Kennedy rejects the completely historical definition of what is fundamental within the meaning of the due process clause. He looks at "ancient sources," but also seeks "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." That's awkwardly put and will make critics wonder if he was avoiding saying something that would look wrong if said clearly. Justice Scalia, in dissent, offers a stinging paraphrase: "Ask the nearest hippie." [ADDED: I realize, on reading the Scalia dissent, that I misunderstood what Scalia was advising us to ask the nearest hippie about. He meant that the "nearest hippie" would tell you that marriage is a loss of freedom, man.]

Kennedy considers the argument for restraint, for letting this issue percolate/ferment out there in the political arena for a while longer. But we've already taken some time, and rights supervene majoritarian decisionmaking.

What about the argument that same-sex marriage will cause fewer opposite-sex couples to marry? The Court calls it "counterintuitive." It doesn't believe that's the way people think about the decision whether to marry.

Kennedy considers the new problem that now arises: What about those who opposed ssm for religious reasons? They are protected by the First Amendment "as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." That's a reference to speech. It isn't enough to satisfy those who want their religion-based conduct protected (the wedding cake questions and so forth). Indeed, the very same protection is available to those who opposed ssm for reasons other than religion. You have free speech. Nothing is said about the freedom to discriminate based on your disapproval.

I see that I missed the Equal Protection discussion the first time through. Let's scroll back to page 19. The Court says that Due Process and Equal Protection are "connected in a profound way" but rest on "independent principles." Once you see the burden on liberty, you must acknowledge the violation of equality "precepts," Justice Kennedy writes:

Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.

That "long history of disapproval" resonates with old cases about heightening scrutiny, but there's no talk of that here. There's a distinct absence of doctrinal particularity about the levels of scrutiny. There's no discussion of the government interest to be served and how closely connected it is to the policy that's supposed to serve that interest. The focus is on the gravity of the burden imposed.

This ends the live-blogging of reading the majority opinion. It's notable that the due process analysis predominated and drove the equal protection analysis. I think the inequality is easier to explain and understand, but there are reasons to prefer to frame things in terms of fundamental liberty. Equality is, perhaps, a cooler matter than liberty. There's more passion in liberty and more to disagree about. There's no end to demands for liberty, and which liberties get to be fundamental? That question sets us up for the dissenting opinions, and for those, I'll do separate posts.

Much of Justice Kennedy's opinion is workmanlike and dull, piecing together precedents in an earnest effort to show us that the right found today was really always already there and nothing to do with feelings and political preferences. But there were some glimmers of passion. My favorite example:

"Marriage responds to the universal fear that a lonely person might call out only to find no one there."

From the majority opinion in Obergefell v. Hodges (PDF), which just came out:

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures,and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.

That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.

The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

AKRON, OH — Squandering the authority and respect accumulated during his tenure, Pantheon Systems senior manager Robert Crawford, 52, reportedly had his clout instantly evaporate Thursday upon his being seen wearing shorts at the company’s annual summer picnic. “Hey there, good to see you,” said the formerly intimidating supervisor, who moments after arriving at the Pantheon picnic site in a pair of khaki Izod shorts that rose above his knobby, pallid knees had caused his immense levels of influence to dissipate within a matter of seconds....

That is — I think — my favorite new song on the radio. And I mean based on my experience at the time — the amazement and love at first hearing. Here — that will play without an ad. You'll see Jim — it was Jim then — McGuinn with his Jim McGuinn glasses halfway down his nose. It wasn't ridiculous then, I assure you.

Republican Gov. Phil Bryant said Thursday... "As has been my longstanding practice, I will not call a special legislative session for something other than a natural disaster or a major economic development project"....

What will the new flag look like?

In January 2001, Governor Ronnie Musgrove appointed an independent commission which developed a new proposed design, and on April 17, 2001, a non-binding state referendum to change the flag was put before Mississippi voters.

Obviously, the proposed flag lost. (It was 64% to 36%.) But there was a specific flag:

You can see how a committee would derive that from the existing flag:

I know I'm an outsider, but I'd just like to make a suggestion, and it's a suggestion based on something Mississippi did very well: the state quarter:

Derive the new flag from that. It's a positive image that completely sheds the remnants of the Stars and Bars, yet it's rooted in tradition. Mississippi is — but please don't write this on the flag — The Magnolia State. And flowers have, over the years, appeared on various flags, for example:

[John Absmeier, director of Delphi's Silicon Valley lab and global business director for the company's automated driving program] was a passenger in a prototype Audi Q5 crossover vehicle equipped with lasers, radar, cameras and special computer software designed to enable the vehicle to drive itself, with a person at the wheel as a backup.

As the Delphi vehicle prepared to change lanes, a Google self-driving prototype — a Lexus RX400h crossover fitted with similar hardware and software — cut off the Audi, forcing it to abort the lane change, Absmeier said. The Delphi car "took appropriate action," according to Absmeier.

So the car that was continuing in its own lane is said to "cut off" a car that was trying to change lanes? The Delphi exec is seeking publicity for avoiding a crash, but why did the car create a close call in the first place? Was it testing its crash-avoidance technology? Why call attention to this? Are we supposed to find it interesting that 2 self-driving cars got a little close to each other on some Silicon Valley street?

Maybe Absmeier was excited about the performance of the car at the point when the performance got exciting, but wouldn't most people find fault in the car that tried to change lanes when there wasn't enough room? Perhaps, in real-life driving, we do attempt to change lanes in situations where the idea is to get the other car to slow down and let us in and, when it doesn't, we think the driver of that other car is "cutting us off." It may be that a self-driving car that just owns its lane and proceeds at a consistent speed is insufficiently adapted to the human culture of driving.

June 25, 2015

In a sly reference to Nancy Pelosi's "we have to pass the bill so that you can find out what is in it," Chief Justice Roberts quotes an old Felix Frankfurter article — "Some Reflections on the Reading of Statutes, "47 Colum. L. Rev. 527, 545 (1947) — that described a cartoon "in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.'").

Loose judicial reading makes for loose legislative writing. It encourages the practice illustrated in a recent cartoon in which a senator tells his colleagues "I admit this new bill is too complicated to understand. We'll just have to pass it to find out what it means." —Felix Frankfurter, "Some Reflections on the Reading of Statutes," 47 Columbia Law Review 527, 545 (1947)

... and the original 1947 cartoon (showing the misquoted "what it means" for "how it works"):

ADDED: When I was a kid I liked to read the funny pages and "Grin and Bear It" was the one cartoon that was not accessible to me. I read all the cartoons and I read that, but I had to just trust that whatever the humor was, some day I would get it. Today is that day.

ADDED: The majority says that Chevron deference — which asks only "whether the agency’s interpretation is reasonable" — has never applied applied "in extraordinary cases," where there's reason to "hesitate before concluding that Congress has intended" to delegate to the agency the authority to "fill in the statutory gaps." Here, the tax credits are "key reforms, involving billions of dollars," with big "economic and political significance," and the agency making the decision is the IRS, which "no expertise in crafting health insurance policy."

Without Chevron deference, it's the Court's job to say for itself what the statute means.

The losing side in this case rested heavily on the argument that the statute was clear (that there were no subsidies for states that didn't set up their own exchanges and left it to the feds to set up exchanges), but the majority found ambiguity. It blamed Congress for "inartful drafting," for writing "key parts of the Act behind closed doors, rather than through 'the traditional legislative process,'" and for using "reconcilation" instead of leaving the bill open to debate and amendment. In a sly reference to Nancy Pelosi's "we have to pass the bill so that you can find out what is in it," Chief Justice Roberts quotes an old Felix Frankfurter article — "Some Reflections on the Reading of Statutes, "47 Colum. L. Rev. 527, 545 (1947) — that described a cartoon "in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.'").

Since the text is ambiguous, the Court looks at the statute's "broader structure" for meaning, and the need to prevent the "death spiral" determines the outcome. The Court rejects the idea that Congress intended dire consequences, that it wanted to make an offer the states couldn't refuse, because Congress "expressly addressed what would happen if a State did refuse the deal."

AND: Justice Scalia dissents, joined by Justices Thomas and Alito. He finds clarity in the key phrase and proclaims: "Words no longer have meaning if an Exchange that is not established by a State is 'established by the State.'" He accuses the majority of "interpretive jiggery-pokery" in pursuit of "the overriding principle": "The Affordable Care Act must be saved."

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.... We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct....

It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility....

It's a 5-4 decision, with Justice Kennedy joining the majority and writing the opinion.

This is the first opinion of the day, and since the opinions are announced in order of the seniority of the author of the majority opinion, that means only cases authored by Kennedy, Scalia, or Roberts will be announced today.

ADDED: I thought the "ingenious" fixes would incorporate more of the bad original material. I don't see what's "ingenious" about putting something bigger and darker on top!

See? I shouldn't even have blogged that. It's much less entertaining then "Every state flag is wrong, and here is why" — which made me laugh a lot in my comfy chair yesterday but I was too lazy to get up and blog and then everyone else already blogged.

But now, I've got to see what's going on with the Supreme Court. The action is just starting!!

"Seduction was never a casual sport for me; it was more like a heist, adrenalizing and urgent. I would plan the heist for months, scouting out the target, looking for unguarded entries. Then I would break into his deepest vault, steal all his emotional currency and spend it on myself."

I've got to call it female privilege — this sense that what would be stalking rapacity in a man is rather adorable in a woman.

The writer is Elizabeth Gilbert, author of the memoir "Eat, Pray, Love." Yeah, sic, it's "Pray," not "Prey," as you might think if all you know of her is this op-ed, which is, in fact, all I've read of her. But I do know of "Eat, Pray, Love." And I did finish this op-ed, which becomes instructively self-helperish in the end. She eventually "forced myself to admit that I had a problem" — there's a phrase — and realized after 20 years of "[s]tealing other women’s boyfriends" that her behavior wasn't, in fact, "feminist" — nice to get to some sisterhood after not noticing until you're — what? — 40?

She determines that "There is no way to stop a destructive behavior, except to stop" and goes "celibate" for the amazing time span of 6 months. She was "serious, working with a good therapist, trying to learn if I even existed at all when I wasn’t blazing in the heat of somebody’s longing gaze." And if you like reading sentences like that, you should be up for the cheeseball ending where she meets a guy she likes, wins an invitation back to his apartment, but she passes it up, and the two go get Italian ices instead. In the end, she walks away, "alone but calm" and "realized that the better part of my life had already begun."

Or she walks away alone and planning a piece of writing and realizing that she's got the better part of a neat narrative arc already composed in her head.

A PBS internal review has concluded that Gates (the eminent Harvard professor) used "improper judgment" helping the big movie star avoid an unpleasant confrontation with the information that might be seen as harmful to his image. I don't really see why it would hurt him, since we are not our ancestors, and Affleck could have used the occasion to show us the right way to respond to the legacy of slavery.

If he'd handled it well, it would have been to his credit. Affleck didn't know his email would be leaked, but we now know he just said he was "embarrassed." Embarrassed. That's so pathetic. So weak. To hear that his reaction was embarrassment and that he would prevail upon Gates to censor the information to spare him embarrassment... that's embarrassing.

Thank you, your Honor, for giving me the opportunity to speak. I would like to begin in the name of Allah, the exalted and glorious, the most gracious, the most merciful, 'Allah' among the most beautiful names. Any act that does not begin in the name of God is separate from goodness.

This is an emotional time and we all need to think through these issues with a care that recognizes the need for change but also respects the complicated history of the Civil War. The Confederate Battle Flag has wrongly been used for racist and other purposes in recent decades. It should not be used in any way as a political symbol that divides us.

But we should also remember that honorable Americans fought on both sides in the Civil War, including slave holders in the Union Army from states such as Missouri, Kentucky, Maryland and Delaware, and that many non-slave holders fought for the South. It was in recognition of the character of soldiers on both sides that the federal government authorized the construction of the Confederate Memorial 100 years ago, on the grounds of Arlington National Cemetery.

This is a time for us to come together, and to recognize once more that our complex multicultural society is founded on the principle of mutual respect.

In his 2004 book Born Fighting, a popular history of Scots-Irish immigrants in the United States, Webb complained that present-day attacks on the Confederacy and the Confederate flag were part of "the Nazification of the Confederacy." The book included a lengthy attack on post-Civil War Reconstruction policies, and Webb claimed that the federal government "raped the region" during this period. The passage was repeated in his memoir, published in 2014.

"The entire region has been colonized from the outside, impoverishing basic infrastructure such as schools and roads while the banking system and corporate ownership sent revenues from Southern labor to the communities of the north," he wrote in his memoir. The damage done, he contended, "in some measure validated much of the resentment expressed toward the Yankee and his minions."...

Webb's longtime strategist, Dave "Mudcat" Saunders, is an even more ardent fan and defender of the Confederacy. As the New Yorker reported in 2008, Saunders "sleeps under a Rebel-flag quilt, and when challenged on such matters he has invited his inquisitors to 'kiss my Rebel ass'—his way of making the point that when Democrats are drawn into culture battles by prissy liberal sensitivities they usually lose the larger war." Saunders is currently advising Webb on his potential presidential campaign.

The background photo on Jindal’s Twitter feed shows him and his family posing with the Robertsons. To many in the political class, Jindal’s close alliance with a cast of goofy reality TV stars scans as pandering. But a senior adviser to the candidate pointed out that the show has been tremendously popular with the sort of religious conservatives who dominate the Iowa caucuses, and that Willie’s endorsement could be a real selling point....

"Listen, for example, to Laurence Olivier—who was a gifted mimic—struggling to sound like a Midwestern businessman in The Betsy (1978)... For Olivier’s generation, the function of an English actor in an American movie was generally to lend a touch of class to studio costume dramas... Lord Larry and his contemporaries and their immediate successors were, for the most part, perfectly content to sound like the Englishmen they were, except when, as was frequently the case, they were playing Nazis. They just didn’t get much practice talking American. That’s all changed. The Brits have now become so good at imitating Americans that there’s hardly an American role you can’t imagine them in...."

In that clip, Lord Larry is bellyaching about Congress interfering with capitalism. I like the way he lays heavily into the word "cope" at 7:38, "cope" being a key word on the blog yesterday. Yesterday was all about coping, hoping, and poping.

"American society has 'an irrational belief in work for work’s sake,' says Benjamin Hunnicutt, [a] post-workist and a historian at the University of Iowa, even though most jobs aren’t so uplifting. A 2014 Gallup report of worker satisfaction found that as many as 70 percent of Americans don’t feel engaged by their current job. Hunnicutt told me that if a cashier’s work were a video game—grab an item, find the bar code, scan it, slide the item onward, and repeat—critics of video games might call it mindless. But when it’s a job, politicians praise its intrinsic dignity. 'Purpose, meaning, identity, fulfillment, creativity, autonomy—all these things that positive psychology has shown us to be necessary for well-being are absent in the average job,' he said.... The post-work proponents acknowledge that, even in the best post-work scenarios, pride and jealousy will persevere, because reputation will always be scarce, even in an economy of abundance. But with the right government provisions, they believe, the end of wage labor will allow for a golden age of well-being. Hunnicutt said he thinks colleges could reemerge as cultural centers rather than job-prep institutions. The word school, he pointed out, comes from skholē, the Greek word for 'leisure.' 'We used to teach people to be free,' he said. 'Now we teach them to work.'"

Federal prosecutors say that U.S. District Court Judge Mark L. Wolf — who rescinded killer Gary Lee Sampson’s 2003 death verdict after learning a juror lied about her family’s criminal history — entertained a defense witness on Martha’s Vineyard last summer even after noting in an order that Dr. James F. Gilligan’s psychiatric report was part of the Sampson defense. U.S. Attorney Carmen Ortiz’s office has asked for evidence in the matter from Wolf before deciding whether to ask Wolf to recuse himself from Sampson’s penalty phase retrial, due to start this fall.

Wolf disclosed Friday that he and Gilligan were co-panelists last July at a Martha’s Vineyard Film Society screening of a documentary on prison guard brutality titled, “The Life and Mind of Mark DeFriest.” Wolf admitted in court yesterday he invited Gilligan and attorney Alan Dershowitz to his vacation home for lobster rolls before the event.

Carmen Ortiz... a familiar name. I'll have to publish this post to click on the tag and refresh my memory.

"... and so finally persuaded him to open it and it was exactly as it had been when Hitler slept in the room. On the desk there was a blotter covered in Hitler’s signatures in reverse, the drawers were full of signed copies of Mein Kampf. I bought it all. I sleep in the bed, although I’ve changed the mattress."

The electricity was off in one wing of the house, and we made our way in dim light through a conservatory where rows of Hitler heads stared blindly across at each other. Every wall bore a portrait of the Führer, or of Göring...

We passed along more shadowy corridors, through a door hidden in a bookshelf and up another winding staircase, until we found ourselves in an unexceptional bedroom, a single unshaded light in the ceiling illuminating piles of uniforms. On the walls of the room were a host of gaudy naif paintings and objects in display cases. “They all belonged to the Krays,” Wheatcroft said. “That’s my other great love, the Kray twins.”...

1. This guy at a Cubs' game shouldn't have been catching the ball anyway. It was fan interference. And he's holding a baby.

2. And Blake Lively's hunky husband did not put the baby in the front-pack carrier properly. "'James' feet are dangling out of the bottom of the carrier, and they're together. When baby's feet are pushed together in a carrier, it increases the risk of hip dysplasia, as their little hips are basically pushed out of their sockets. The other thing going wrong here is that James' head seems to be completely obscured. Babywearers always want to make sure they can see their infant's face, and keep their airways clear."

Yes, I've noticed the abrupt cancellation of all attention to Rachel Dolezal. Should we have let her go, sunken forever into the trash heap of forgotten media sensations? Well, probably, yes, I would say, and yet Maya Rudolph would really like to do her impression... if you're at all in the mood.

Verda Byrd... who grew up with an adoptive black family in a small central Kansas town, drew a marked contrast between her astonishing saga and that of the NAACP leader who described herself as African-American for years before her parents outed her publicly.

[S]ome participants have come forward claiming the contest, which required entrants to submit a 200-word essay and $125, was rigged in the favor of hospitality pros, not wordsmiths with a dream. A Facebook group called Center Lovell Fair Practices Commission has surfaced as a clearinghouse for jilted participants. It had 100 members by Monday evening....

“We need to make sure it’s a game of skill, not chance,” said [State police Sgt. Michael Johnston of the Special Investigations Unit].... Running an unlicensed game of chance is a Class D misdemeanor that carries a maximum penalty of $2,000 and 364 days in jail. Sage did not have a license to do so, Johnston said. “That is the only aspect we are investigating. We expect to have it wrapped up within a week or so,” he said.

So the police are not investigating what the Facebook group is complaining about.

Cortney Potts, a chef from Nebraska who entered the contest, said, “What bothered me was the inconsistent information.” She claims the Facebook page associated with the contest did not jibe with the online rules. “The flow of information was not handled well. It’s disappointing that the winners already have a restaurant. That upset a lot of people,” said Potts, who filed a complaint with the attorney general’s office stating that the contest was unfair. “They are hiding something, and we need to figure out what it is.”

It seems as though the police are investigating whether there were any standards — any judgment of the essays — or whether it was a game of chance. The Facebook group is complaining about the standard applied in judging the essays — were they looking for an aspiring dreamer or somebody with experience and know-how?

"... but something incongruous is happening in women’s behavior that can’t be chalked up to reflexive politeness. Look at the Metropolitan Transportation Authority’s new ads warning New York straphangers against inconsiderate behavior, like eating on the subway or manspreading. Graphics depict men displaying almost all these behaviors, except, perhaps in an effort to provide gender balance, the one that advises women to avoid elbows-out personal grooming. The scenario seems ridiculously unrealistic — and not just because it’s the only one I’ve never witnessed firsthand. The ads are saying that men are far less likely to be conscious of personal space than women. So why, even after making ourselves physically smaller on the subway, are we still the ones apologizing?"

(Please note Crosley recognizes that "I'm sorry" can be a form of assertiveness or passive aggression. And by "Please note," I mean: I bet you knuckleheads are assuming that Crosley thinks women are good and men are bad and therefore her opinion is worthless.)

ADDED: Here's what I really think about Crosley's topic. People expect women to be nicer and judge us more harshly when we strip away the verbal niceties and speak clearly and directly. It's easier to leave all that swaddling around our statements so we don't attract attention where we don't want it. What I'd say to women is: Think about whether and when you want to stop it. Do you want to be known for clear and direct statements? Maybe not!

AND: I remember when it was the man who said "I'm sorry" and the woman who contained the wisdom "Love means never having to say you're sorry."

"He told Mr. Barr that he had decided to get the flag removed when he saw the pained look on a middle-age black woman at his gym on Monday. '"If South Carolina can take theirs down,"' Mr. Barr recalled him saying, '"I can take mine down."' I told him, "Right on."'"

The ending to a NYT article under the headline "Flag Supporters React With a Mix of Compromise, Caution and Outright Defiance." The man with the flag tattoo wasn't reacting with compromise, caution, or outright defiance, of course. He reacted with some mix of empathy and desire for social acceptance. The NYT characterized his attitude a "resigned to surrender" — war imagery that resonated with the first paragraph:

It has been quite a few years since the lost cause has appeared quite as lost as it did Tuesday. As the afternoon drew on and their retreat turned into a rout, the lingering upholders of the Confederacy watched as license plates, statues and prominently placed Confederate battle flags slipped from their reach.

June 23, 2015

"... and particularly when people use it obviously for murder and to justify hatred so vicious that you would kill somebody I think that that symbolism needs to end, and I think South Carolina is doing the right thing.... There have been people who have used it for southern pride and heritage and all of that but really to I think to every African-American in the country it’s a symbolism of slavery to them and now it’s a symbol of murder for this young man and so I think it’s time to put it in a museum."

Donald Featherstone was 79. His iconic, unforgettable lawn sculpture was designed in 1957, based on a photograph in National Geographic.

The flamingo ornament was one of hundreds of items he made for the Union Products plastics company in Leominster, Mass. The AP reports that Featherstone spent 43 years with the company, "rising to the position of president before his retirement in 1999."... Leominster Mayor Dean Mazzorella called Featherstone a "local classic."

Leominster, Massachusetts has lost its local classic, but there is loss too in Madison, Wisconsin, where Featherstone's flamingo is the official city bird:

Ald. Marsha Rummel, 6th District, who sponsored the resolution [in 2009], said she was 22 on the day 30 years ago when 1,008 of the venerable lawn ornaments appeared on the [Bascom Hill] on the first day of classes for UW-Madison students. That "unique event that signifies something that makes us a very special place" is "captured in our imaginations forever," Rummel said.

The exam... presented a passage from Ian McEwan’s “Atonement” relating to the book’s central character, Robbie Turner. The notorious “Question M” asked, “What are three of his concerns about the situation?” and “How is Turner coping with the situation?”...

Pupil Arthur, 17, (whose family name was not given) told reporters on Monday that after the exam he spoke to a friend at a different school who also had trouble with “coping.”

“So I launched a petition to see if others were as baffled as us, and it went viral,” he said. “Loads of people were stumped with 'coping'. It’s obviously not a word in common usage.”

ADDED: Here's a little help from the OED:

a1825 R. Forby Vocab. E. Anglia (1830) Cope. The use of this word is confined to warreners, who are said to ‘cope’ their ferrets, when they sew or tie up their mouths, to prevent them from biting rabbits, when they..drive them from their holes.

ALSO: Let me be seriously helpful, using the (unlinkable) OED. The original meaning has to do with coming to blows, and it actually comes from French, the word couper, meaning "to strike (now to cut)." The figurative meaning is "To contend with, face, encounter (dangers, difficulties, etc.)," often in the context of a successful fight.

I remember much discussion, back in the 1950s and 60s, about the use of "cope" without "with [something]," and the OED acknowledges this as a colloquialism. It offers a quote that shows the problem language commentators had with it:

1958 I. J. C. Brown Words in our Time 41 ‘She suffers from copelessness.’ I have heard this said of an unsatisfactory employee. The use of cope as a verb by itself to describe dealing with all kinds of situations is a recent usage. In my youth we tried, or were told to try, to cope with this or that problem. We were not required to cope in general.

I'd never noticed the word "copelessness" before. I searched the NYT archive for it and found exactly one usage — by Andy Rooney (of all people). It was 1987, and what he wanted was a presidential candidate who didn't want to be President. So, he's imagining this character — "someone above the fray who is barely willing to serve if chosen" — talking to a reporter who asks him if he has anything embarrassing in his personal life. His answer includes: "I saw a psychiatrist in 1969 when I was suffering from copelessness, and recently I read about Jessica Hahn in Playboy while I was getting a haircut."

Now, do I have to explain who Jessica Hahn was? Or is that too far down the rabbit hole? My lips are coped!

Consider the apparently received wisdom that we prefer symmetrical, evenly balanced features.... [M]any of the previous experiments had asked just a small number of subjects to rate different faces – making it easier for fluke results to jump out. When Stefan Van Dongen at the University of Antwerp conflated the results in a large meta-analysis, he found the effect almost disappears when you consider enough people. In fact, facial symmetry may not even say much about your health. Although previous research had found some evidence for the idea, a 2014 study took 3D scans of nearly 5,000 teenagers and quizzed them about their medical history. It found that those with the most symmetrical features had been no fitter than the others....

"I read a great book on St. Francis of Assisi, who the Pope... models himself after. The environment was given to us by the Lord, and it needs to be taken care of. And it shouldn't be worshiped, that is called pantheism. So, I think the Pope pointing out the fact that we need to take care of the environment is good. I don't agree with his conclusion that all of it is bad because of free enterprise, because it's lifted people out of poverty, and he cares about the poor, and so do I. But, I mean, a nice warning to people about the environment. In my state, we've reduced emissions by 30% over the last 10 years. We want to develop renewable. So, I have no problem. If the Pope wants to talk about pollution and how we need to be conscious of it, good for him."

And after a question about legislation, Kasich indicated he didn't know what the Pope's legislative agenda is and: "Let's not get carried away... I think what he was trying to say is we care about the environment, and I agree with him."

Reading the presentation at Real Clear Politics, Meade said "I think the Republicans have their new Todd Akin" — that is, a dumb guy who will emit sound bites that will get a lot of attention and embroil other Republicans in distracting discussions that will tarnish them all. I was going to frame this post around that idea. But Kasich did not accuse the Pope of pantheism, nor did he equate environmentalism with pantheism. He didn't even distance himself from environmentalism.

But "pantheism" is a powerfully distracting word, and it would be helpful to Democrats to exploit whatever they can find to make Republicans seem to have some weird notion that environmentalism is religious heresy.

ADDED: You know, Kasich is a little blabby and he may be kind of dumb. I'd advise him to think about what he wants to say before he just starts riffing. Have a point and get to it. He was asked a question about whether environmentalism is a moral issue, and he began soberly telling us about his readings on theology. He may believe he's the thoughtful, educated man in the GOP group. That's a huge vulnerability! Remember, Todd Akin seemed to think he was lecturing us on science.....

"As many as 129 children from Unity State were killed during only three weeks in May. Survivors report that boys have been castrated and left to bleed to death … Girls as young as 8 have been gang raped and murdered … Children have been tied together before their attackers slit their throats ... Others have been thrown into burning buildings. Children are also being aggressively recruited into armed groups of both sides on an alarming scale – an estimated 13,000 children forced to participate in a conflict not of their making. Imagine the psychological and physical effects on these children – not only of the violence inflicted on them but also the violence they are forced to inflict on others."

"I was a bit of a nervous wreck and he immediately put me at ease. I don't know how, I'm not easy to put at ease. I'm a nutbag." [Afterwards:] "I cried a little bit, right in front of Brendan. It was a weird moment for us, he handled it pretty well. ... A crew of people came and they started disassembling the tents that were on my driveway and then all the Secret Service got their stuff and they just were gone, it was all gone. I let my cats out of the bedroom ... and they were like, 'Can we have our house back, please?'"

ADDED: At The New Yorker, Sarah Larson wonders whether Maron could get to "the heart and soul of things" as he has with other guests:

Maybe. A President’s heart and soul tend to consist of deeply reasonable sentiments, unless he’s Lyndon Johnson. Obama is by nature rational and pragmatic.... His conversation, humor, and revelations are all intelligent and uncontroversial. Part of what has become second nature to him is speaking so reasonably that it’s almost aggravating. What does he do for fun? Watch his daughters grow up; he finds them spectacular. Play basketball, but he’s not as young as he used to be. When he mentioned parental craziness and the desire to not pass your own craziness on to your kids, Maron said, “How are you crazy?” Well, he isn’t.... He may have been as real as he gets....

UPDATE: Haley is giving recognition to the different "viewpoints" of the meaning of the flag, but at the state house, "It's time to move the flag from the capitol grounds." Huge applause. "Some people will see this as a sad moment... but this flag, while an integral part of our past, does not belong in our future.... By removing a symbol that divides us, we can move forward in harmony." She speaks of honoring the "9 souls... who are in Heaven." She stresses that it's South Carolina's decision, and that many people outside of the state have misunderstood what the flag means. It doesn't mean hate, she assures us, but it does cause "pain to so many," and that is the reason for banishing it from the state house grounds — though of course, as she mentions, individuals remain free to display the flag themselves.

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

Chief Justice Roberts writes the main opinion, joined by Justices Kennedy, Scalia, Thomas, and Alito and in part by Justices Ginsburg, Breyer, and Kagan. (Only Justice Sotomayor dissents.) Excerpt from Roberts:

There is no dispute that the “classic taking [is one] in which the government directly appropriates private property for its own use.”... Nor is there any dispute that, in the case of real property, such an appropriation is a per se taking that requires just compensation.... Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.

And just as when it takes your raisins.

ADDED: In case you're wondering if the Justices talked about the notorious Kelo decision. The answer is, one Justice did. Justice Thomas wrote:

The Takings Clause prohibits the government from taking private property except “for public use,” even when it offers “just compensation.” U. S. Const., Amdt. 5. That requirement, as originally understood, imposes a meaningful constraint on the power of the state—“the government may take property only if it actually uses or gives the public a legal right to use the property.” Kelo v. New London, 545 U. S. 469, 521 (2005) (Thomas, J., dissenting). It is far from clear that the Raisin Administrative Committee’s conduct meets that standard. It takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments. 7 CFR §989.67(b) (2015). To the extent that the Committee is not taking the raisins “for public use,” having the Court of Appeals calculate “just compensation” in this case would be a fruitless exercise.

"The Court has held that business owners cannot reasonably be put to this kind of choice... Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril...."

"Why don’t you not force them to debate while they have tears in their throats? Don’t politicize their pain. Don’t turn this into a debate on a flag or guns. Don’t use it to make your points and wave your finger from your high horse. These people are doing it right without you."

ADDED: I was saying something similar earlier this morning, specifically criticizing the way Chuck Todd interviewed the family of Daniel Simmons Sr. on "Meet the Press," and this makes me want to extract one more thing from the transcript. The question is addressed to the dead man's granddaughter:

CHUCK TODD: Alana, a lot of people want to use this incident to have a bigger conversation to try to do something. Racial reconciliation, guns. There's a lot of issues that people want to grab onto. What do you want the country to take away from this? And what do you want the country to be having and our political leaders to be having a conversation about?

ALANA SIMMONS: Well, we elect not to talk about politics, or policies, or race issues at this time. At this time, we just want to focus on our grandfather and the other victims and making sure that the communities and the families heal and move on from this tragedy.

UPDATE 2: Los Angeles v. Patel, Sotomayor writes, affirming the 9th Circuit, which protected a 4th amendment right relating to hotel registries."This is a strong decision for Fourth Amendment lovers." Here's the PDF of the opinion. It's a 5-4 opinion, a liberal/conservative split, with Justice Kennedy joining the liberals.

UPDATE 3: Kingsley v. Hendrickson. Split 5-4, in the same pattern as in Patel. The 7th Circuit is reversed. "Kingsley was waiting [in a Wisconsin jail] for trial on a drug charge when he got into a dispute with jail officers, who handcuffed him, forcibly removed him from his cell, and later used a taser on him. Kingsley then filed a lawsuit, alleging that jail officials had used excessive force. The question before the Court was what standard of review should apply to an excessive force claim by a pretrial detainee.... The Court ruled in favor of Kingsley, holding that courts should apply an objective test – the same Fourth Amendment excessive force test that applies to people who have not been arrested."

UPDATE: Horne v. Department of Agriculture. "Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property." That's the last opinion of, so none of the hotly anticipated cases today.

“The legacy of slavery, Jim Crow, discrimination in almost every institution of our lives, you know, that casts a long shadow, and that’s still part of our DNA that’s passed on. We’re not cured of it,” Obama said in the interview, posted in full on Monday. “And it’s not just a matter of it not being polite to say ‘n——-’ in public. That’s not the measure of whether racism still exists or not. It’s not just a matter of overt discrimination. … Societies don’t overnight completely erase everything that happened 2-300 years prior.”